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'Free' and other 4-letter words
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

No matter how much you support free expression, there’s always something that can challenge your beliefs.

Some are unsettled by violence on television; others have second thoughts about sexist or racist Web sites. Others question liberties taken in provocative books or art.

I can defend any banned book or controversial painting, but somehow the sight of a guy wearing a “F--- You” T-shirt at a county fair or football game gets under my skin.

You’ve seen him. Apparently unable to afford the “If I Only Had a Brain …” T-shirt, he wears America’s most overused phrase with pride.

The tacky T-shirt puts parents in a tough spot. They try to steer their kids in another direction, determined to avoid an embarrassing moment or question. Why doesn’t somebody do something about this rude behavior? Shouldn’t government be able to stop public vulgarity of this sort?

Of course, that’s when I come to my senses. Public profanity isn’t pretty, but it’s almost impossible for government to constitutionally designate some words as acceptable and others as inappropriate. The truth is that public profanity can violate our sensibilities, but generally doesn’t violate the law.

The Idaho Supreme Court made that point a few weeks ago in overturning the misdemeanor conviction of a man who cursed at a police officer in a 1998 incident.

Patrick Sheldon Suiter had gone to the Canyon County Courthouse to speak to an officer about a fraudulent-check case in which a friend was victimized. The officer refused to file a complaint without some verification that Suiter was authorized to act on behalf of the victim. Suiter became angry and critical of the police department. After being told by the detective to calm down, Suiter said, “Hey, f--- off” and began to leave. He was then arrested by two officers and accused of disturbing the peace.

Police said Suiter wasn’t arrested for what he said, just how he said it. The U.S. Supreme Court concluded long ago that a profane expression cannot be the sole grounds for prosecution. In a landmark case in 1971, the high court dismissed a charge of disturbing the peace against a man whose jacket bore the message: “F--- the draft.” In finding that “one man’s vulgarity is another’s lyric,” the court essentially barred the future prosecution of vulgar written messages, including bumper stickers and T-shirts.

Suiter’s profanity was spoken, not written, but the Idaho Supreme Court cited that profane protest of the draft in concluding that Suiter’s insulting remark to the police officer was indeed speech protected by the First Amendment.

The court noted that abusive and highly provocative epithets directed toward ordinary citizens can be banned as so-called “fighting words.” But in this case, the comment was addressed to a police officer, a public servant with a duty not to be provoked to violence by mere words. In addition, a total of just six people heard the remark, none of whom characterized it as yelling, shouting or screaming. It was an uncomfortable moment, but not a highly disruptive one.

Courts face an extraordinary challenge in addressing these issues. Words that were once shocking to polite society are now staples on both cable and broadcast television. Rather than try to legislate language, government can realistically only prosecute the disruptive behavior that sometimes accompanies profane language.

Profane words may be constitutionally protected, but that doesn’t give us a license to say whatever we want, wherever we want, and most important, however we want. In other words, “fire” is not the only word you can’t shout in a crowded theater.


Idaho high court reverses cop-cusser's conviction

Justices find statement Patrick Sheldon Suiter made in frustration wasn't likely to provoke violence, therefore was protected speech. 10.29.02

Congressman proposes banning 8 crude words from airwaves
Doug Ose says he was amazed when the FCC refused to sanction TV stations that showed Bono using expletive at last January's Golden Globe Awards. 12.16.03

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